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New Jersey Division of Child Protection and Permanency v. Y.A.

Superior Court of New Jersey, Appellate Division

October 25, 2013

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent,
v.
Y.A., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L., Minor.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 25, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0032-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Sherwood, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.L. (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Sapp-Peterson and Hoffman.

PER CURIAM

Defendant Y.A. appeals from the December 11, 2012 judgment of guardianship entered by the Family Part terminating her parental rights to her then three-year-old son, J.L. (Johnny).[1]Defendant contends that plaintiff New Jersey Division of Child Protection and Permanency (the Division)[2] failed to prove by clear and convincing evidence the requisite statutory factors to establish that Johnny's best interests would be served by terminating her parental rights. The Law Guardian supports the termination of defendant's parental rights.

In a cogent written opinion, Judge Mary Gibbons Whipple addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law, and concluded the Division had proven its case by clear and convincing evidence. After careful review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record, and, therefore, should not be disturbed on appeal. Accordingly, we affirm, substantially for the reasons stated by Judge Whipple in her written opinion issued on November 30, 2012.

I.

We derive the following facts from the trial record. Defendant is the biological mother of Johnny, who was born in May 2009. On May 27, 2010, the Division received a referral from Dr. Jacek Sakowski, Johnny's pediatrician, reporting that he had observed unexplained cuts and bruises on Johnny. Dr. Sakowski stated that defendant brought Johnny to his office two days earlier due to what appeared to be a heat rash from an allergic reaction. When defendant returned with Johnny for a follow-up appointment on May 27, Dr. Sakowski observed bruising on Johnny's ribcage, back, and left inner thigh, as well as small cuts on his left thigh and left arm. Defendant provided no explanation for the bruises and cuts. Dr. Sakowski indicated that the marks could have been caused by squeezing the child. Prior to the referral, Dr. Sakowski, who had been treating Johnny since December 2009, had never observed any bruises or marks on the child.

Division workers visited defendant's residence to investigate the referral that same day. The workers observed visible scratches on Johnny's arms, inner thighs, and left calf, and multiple abrasions on both sides of his ribs. Additionally, Johnny had a rash covering his body.

When questioned about the bruises, defendant claimed that Johnny woke up crying at approximately 3:30 a.m. that morning, so she gave him a bottle, which helped put him back to sleep; when she dressed him in the morning, she noticed the bruises and then took him to the pediatrician in the afternoon. Defendant denied leaving Johnny alone with anyone from Monday, May 24, 2010 through Thursday, May 27, 2010. The workers advised that they needed to take Johnny to a doctor for an examination, and transported him and defendant to the Audrey Hepburn Children's House at Hackensack University Medical Center.

Dr. Nina Agrawal conducted the physical examination and spoke with defendant, who indicated that she was the only caregiver for Johnny. Defendant claimed that she did not know what caused the marks on Johnny and speculated that the marks could have been caused at daycare. Dr. Agrawal concluded that

the injuries in this patient are highly consistent with physical abuse. The location, distribution, severity, and appearance of the bruises and abrasions are not consistent with accidental trauma, particularly in a one-year-old infant with limited gross motor abilities. It is of paramount importance that the safety of this patient is ensured immediately. Additional testing is required to determine the possible presence of additional injuries.

Dr. Agrawal recommended hospital admission for Johnny to permit further testing and observation. When defendant did not agree to Johnny's hospital admission, the Division effected an emergency removal pursuant to N.J.S.A. 9:6-8.29.[3]

On June 1, 2010, a Family Part judge signed an order to show cause and granted the Division custody of Johnny, who was then placed in foster care. This order granted defendant weekly supervised visits with Johnny.

The Family Part held a fact-finding hearing regarding the abuse and neglect allegations against defendant on September 23, December 1, and December 14, 2010. On January 5, 2011, the trial judge issued an order stating the court had determined that defendant had "caused the injuries to the child that resulted in severe bruising on his body on or about May 27, 2010." Defendant appealed the order and we affirmed. Div. of Youth & Family Servs. v. Y.A., No. A-2047-11 (App. Div. Dec. 11, 2012) (slip op. at 16).

Following the removal, the Division initially placed Johnny in foster care. On February 18, 2011, the Division placed Johnny with his maternal grandfather and his grandfather's wife (collectively "grandparents") in Pennsylvania. Johnny remains in their care and they want to adopt him.

The Division also provided defendant with visitation and counseling services. Despite counseling, defendant continually denied she had abused Johnny and otherwise refused to accept any responsibility for his injuries, even though she was the child's sole caretaker. When defendant failed to make any progress, the Division, with the court's approval, changed its goal from reunification to termination of parental rights. On September 14, 2011, the Division filed its complaint for guardianship.

Judge Whipple presided over a four-day guardianship trial between September 21, 2012 and December 11, 2012. The Division offered testimonial evidence from its caseworkers, Felipe Sanchez and Hayleen Rodriguez, who recounted the history of the Division's involvement with defendant, and the Division's efforts to reunify defendant with Johnny.

The Division also presented the testimony of Elizabeth Smith, Psy.D., who completed a psychological evaluation of defendant, as well as bonding evaluations of Johnny with defendant and Johnny with the grandparents.

Prior to administering the psychological evaluation, Dr. Smith said she reviewed defendant's history with the Division. Dr. Smith found significant: the nature of the substantiated abuse, defendant's continued denial of the abuse and her belief that the injuries occurred as the result of a drug reaction, and defendant's failure to make progress despite two years of psychological treatment.

Regarding her psychological evaluation, Dr. Smith testified defendant "presented with a very flat affect . . . [T]here wasn't a lot of emotion in her face. There wasn't a lot of emotion talking about her child and the injuries he sustained." Dr. Smith found defendant's affect unusual because normally parents appear distressed when talking about injuries to their children, even where the injuries lead to the Division's involvement.

Dr. Smith found defendant's account of what occurred very terse and practiced, stating that she "was very rigid in this belief that she didn't do anything [and] it wasn't abuse, even in the first place. And that it had been a drug reaction." Defendant expressed to Dr. Smith that she felt people had lied; she claimed that daycare personnel lied to the Division by stating that they had told her to take Johnny to the doctor, when she had actually told the daycare personnel she was going to take Johnny to the doctor.

Defendant also complained to Dr. Smith about the doctors; specifically, that only a "DYFS doctor" testified at the fact-finding hearing and she did not believe that doctor was credible. Additionally, she claimed "she had had another physician, but her lawyer had been unprepared and all of these circumstances, none of which having to do with her, resulted in a substantiation." Dr. Smith testified that she talked to defendant about "being a little bit more open and flexible in her thinking" so that she could regain custody of her child, but defendant was unable to comply. According to Dr. Smith, parents who cannot be flexible in their thinking about children "tend to pose a higher risk for child abuse."

Dr. Smith also testified about psychological tests she administered to defendant. On the "Adult-Adolescent Parenting Inventory[, ]" which measures risk for abuse and neglect, defendant scored in the medium risk range for "appropriate expectations for children's behavior, knowledgeable alternatives to physical punishment, and an appreciation of appropriate . . . parent/child roles." Defendant scored in the high risk range for "valuing independence in children" and "empathy." Dr. Smith expressed concern that defendant had not made any progress in these areas despite two years of therapy.

As to the bonding evaluations, Dr. Smith found that Johnny had a secure bond with his grandparents and they were very appropriate with him. She found defendant was also appropriate with Johnny and he was affectionate with her. Dr. Smith testified "in terms of an opinion about [Johnny's] attachment, his primary attachment at this moment is to his grandparents. Because, they're the people who are there for him[.]" Although Dr. Smith believed that Johnny had some degree of attachment to defendant, it was not a primary attachment.

Finally, Dr. Smith testified as to the importance of permanency in Johnny's life. She considered the possibility of Kinship Legal Guardianship (KLG), but ultimately determined that it was not a good option for Johnny based on her assessment that defendant does not have the capacity to change. Dr. Smith testified that she believed defendant continues to represent a risk to Johnny. Thus, Dr. Smith opined that Johnny would not suffer any harm if defendant's parental rights are terminated; moreover, Johnny's grandparents have the capability to diminish any minimal harm that termination might cause.

The Division also presented the testimony of Dr. Agrawal, the doctor who evaluated Johnny following the initial referral. He testified that Johnny "had multiple bruises and abrasions that were inconsistent with accidental trauma, " self-inflicted trauma, or a dermatological problem or allergic reaction.

Dr. Agrawal reviewed various photographs he took at the time of his examination and explained his reasons for concluding that Johnny's bruises and abrasions represented non-accidental trauma. For example, Dr. Agrawal provided the following explanation regarding a photograph of Johnny's abdomen:

In this photo we're measuring the length of the trunk that was affected by these bruises and abrasions. . . . And it was approximately fifteen centimeters. . . .
This is a photograph of his . . . belly. And it's showing the bruises — his multiple bruises and he had these superimposed, which means abrasions on top of bruises. And, if you look closely, some of them have these short lines, this linear appearance, close together. Which appears consistent with a pattern injury[, ]
[meaning] that something was used to inflict the injury or he was thrown onto something or something was put onto him. But, but not consistent with an accident[al] injury, in the absence of history.

Elayne Weitz, Psy.D. testified as an expert on behalf of the Law Guardian. Dr. Weitz conducted a psychological evaluation of defendant, as well as bonding evaluations of Johnny with defendant and Johnny with the grandparents.

Dr. Weitz described defendant as "chronically deceptive." She elaborated:

My experience of her in the two interviews that I conducted, is that she is extremely guarded. She does not always tell the truth. She puts a wall up around her in many of her responses. They felt like they were stock responses that she was going to anticipate what you wanted to know and provide you what she'd think you wanted —— thought you wanted to know and not . . . what she was really feeling and what she was really experiencing.
She does not admit, even to this point[, ] that [Johnny's] bruises and scratches and lacerations were the result of physical abuse. She does not want other people, outside individuals, involved with her. And she wants to limit the number of people that are involved with [Johnny].
So, the concern is that if there are problems, she is not going to reach out for help.

According to Dr. Weitz, when discussing discipline strategies and parenting techniques with defendant, she "was really naive[;]" she did not have many answers and could not explain how she would handle Johnny engaging in disruptive behavior in public.

Dr. Weitz does not believe defendant has the capability to parent Johnny. Dr. Weitz explained:

As I indicated already . . . first and foremost, she's not able to admit that there was any physical abuse that occurred despite [there] being evidence and a ruling through a fact-finding hearing that . . . he was physically abused. So, I would be very concerned about her ability to protect him in the future.
[W]hen I observed her twice, now, during the bonding evaluations, during the observation sessions, her style of parenting was really hands-off. I think I used the word bland to describe it. The first time she had very high expectations of him. You know, felt that a [two]-year-old should not have his feet on the couch. She has a very rigid style of parenting. And one of the things that is important in establishing a bond and being a good parent, is to be flexible. To be able to have a set of rules and consequences, but be able to mix and match them up. She does not have a . . . breadth of consequences and skills to draw from. And the concern is whether the behavior problem is big or small, she'll have the same approach to it.

Finally, Dr. Weitz does not believe that KLG would be a good plan for Johnny because then defendant's contact with Johnny is "guaranteed, " even though she has shown in numerous instances that "she does not operate in [Johnny's] best interest." Because Johnny's grandparents want to adopt him and he is securely bonded to them, Dr. Weitz believes that Johnny's best interests require the termination of defendant's parental rights.

Defendant did not testify, but Dr. Rachel Jewelewicz-Nelson testified as an expert on behalf of defendant. She conducted psychological evaluations of defendant, as well as a bonding evaluation of Johnny with defendant.

Dr. Jewelewicz-Nelson conducted a psychological evaluation of defendant in October 2010, and again in May 2011. Based on the first set of psychological tests, Dr. Jewelewicz-Nelson determined defendant had some parenting deficits and recommended she receive parenting education. Additionally, she expressed some concerns for defendant's potential for abuse. Dr. Jewelewicz-Nelson stated that on the whole, defendant had a "grossly normal profile;" however, "she had a slightly faking good profile, so that one has to expect that there might be more problems than she was willing to admit" and "there was a certain thread throughout of rigidity [and] of [a] somewhat self-absorbed attitude." Dr. Jewelewicz-Nelson did not believe any of defendant's problems rose to the level of pathology.

As to the bonding evaluation, Dr. Jewelewicz-Nelson stated that defendant and Johnny had a good bond. She described the interaction between the two as "completely appropriate;" however, Johnny did not have difficulty separating from defendant at the end of the session.

Based on the first evaluation, Dr. Jewelewicz-Nelson had some concerns regarding defendant's capacity to parent, and recommended parenting classes. While she believed "that the Division might want to look towards reunification at some later point in time[, ]" she was unable to recommend reunification following this evaluation. Dr. Jewelewicz-Nelson found it "difficult to imagine that [defendant] abused her child given the fact that the . . . pain and sense of . . . having lost custody of him was quite palpable during that session."

Dr. Jewelewicz-Nelson performed her second evaluation of defendant in May 2011. She determined that defendant had demonstrated "significant improvement" in certain areas and did not pose as much of a threat for child abuse. However, Dr. Jewelewicz-Nelson still found that defendant "tends to be fairly rigid, set in her ways kind of person." She further noted that defendant "still looked to her child to . . . feed some of her needs for affection and attention" and "there was potential for trouble for the development of an enmeshed relationship between mother and child." Despite ongoing concerns, Dr. Jewelewicz-Nelson believed that defendant "was in a much better place emotionally."

Dr. Jewelewicz-Nelson also found that there was a "clear bond of attachment between mother and child." Compared to other cases Dr. Nelson had evaluated, she believed defendant "was doing pretty well." Thus, she did not believe termination of parental rights was appropriate. Nevertheless, Dr. Jewelewicz-Nelson did not recommend reunification; instead, she recommended KLG as an alternative solution. She provided the following explanation for recommending KLG:

[T]here was a clear bond between the mother and the child. And he is . . . attached to her. And he derives benefit from being with her. And, so, again, based on my understanding that our legal system and our society is based on the fact that children do belong with their parents whenever possible, I thought that KLG would kind of give everybody the best compromise solution.
It would grant the child the security and the stability and consistency and protection that he needs. But, it would give him contact, guaranteed contact, with the mother. So, he could benefit from . . . both sides of the equation.

Dr. Jewelewicz-Nelson opined that severing Johnny's relationship with defendant would cause him considerable and enduring harm. Additionally, she believed that KLG would allow defendant "to retain her dignity and her sense of . . . parental relationship, while giving in to the other parameters that have prevented her from regaining custody of the child."

II.

The scope of appellate review when evaluating a trial court's decision to terminate parental rights is limited. In re Guardianship of J.N.H., 172 N.J. 440, 472 (2002). Family courts have special jurisdiction and expertise in family matters, and therefore, appellate courts should accord deference to a family court's fact finding. Cesare v. Cesare, 154 N.J. 394, 413 (1998). This is largely because the family court "has the opportunity to make first-hand credibility judgments about witnesses who appear on the stand; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 263 (2007).

Accordingly, the Family Court's factual findings "should not be disturbed unless 'they are so wholly insupportable as to result in denial of justice, ' and should be upheld whenever they are 'supported by adequate, substantial and credible evidence.'" In re Guardianship of J.T., 269 N.J.Super. 172, 188 (App. Div. 1993) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974)). Even when the alleged errors are in the trial judge's evaluation of the underlying facts, an appellate court "will accord deference unless the trial court's findings went so wide of the mark that a mistake must have been made." M.M., supra, 189 N.J. at 279 (internal quotations omitted).

Parents have a fundamental constitutional right to raise their children. E.P., supra, 196 N.J. at 102. However, the constitutional protection surrounding family rights is tempered by the State's parens patriae responsibility to protect the welfare of children. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 447 (2012). Even though "[a] parent's right to enjoy a relationship with his or her child is constitutionally protected[, ]" In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), this right is not absolute. J.N.H., supra, 172 N.J. at 471. The State has the responsibility to protect minor children from serious physical or emotional harm; this responsibility, in some cases, requires that the parent-child relationship be severed. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 599 (1986) (internal quotation marks omitted).

In a guardianship matter, a trial court's examination focuses upon what course serves the "best interests" of the child. K.H.O., supra, 161 N.J. at 343. Our Legislature requires satisfaction of the "best interests of the child" test, codified in N.J.S.A. 30:4C-15, by clear and convincing evidence before termination of parental rights can occur. See A.W., supra, 103 N.J. at 612 ("The correct standard is 'clear and convincing' proof."). Specifically, the four-prong test set forth in N.J.S.A. 30:4C-15.1(a) requires the Division to prove:

(1) The child's safety, health or development has been or will continue to be endangered by the parental relationship;
(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to that harm. Such harm may include evidence that separating the child from his foster family parents would cause serious and enduring emotional or psychological harm to the child;
(3) The Division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and
(4) Termination of parental rights will not do more harm than good.

These factors are neither discrete nor separate; rather, they "'relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests.'" E.P., supra, 196 N.J. at 103 (quoting K.H.O., supra, 161 N.J. at 348). Whether the State has satisfied each prong by clear and convincing evidence is an "extremely fact sensitive" inquiry, which must be based on "particularized evidence that addresses the specific circumstances of the individual case." N.J. Div. of Youth and Family Servs. v. R.L., 388 N.J.Super. 81, 88 (App. Div. 2006) (internal quotation marks and citations omitted).

III.

To satisfy the first prong of the best interests standard, the harm shown by the parental relationship "must be one that threatens the child's health and will likely have continuing deleterious effects on the child." K.H.O., supra, 161 N.J. at 352. Generally, the proofs "focus on past abuse and neglect and on the likelihood of it continuing." N.J. Div. of Youth & Family Servs. v. F.H., 389 N.J.Super. 576, 609 (App. Div.), certif. denied, 192 N.J. 68 (2007) (quoting In re Guardianship of J.C., 129 N.J. 1, 10 (1992)).

As to the first prong, Judge Whipple stated she was bound by the finding of the judge in the Title 9 proceeding that defendant caused the injuries to Johnny. Regardless, she found "the record currently before the court clearly and convincingly established that [Johnny] was physically abused by [defendant]." The judge credited Dr. Agrawal's unrebutted testimony that Johnny's injuries were caused by physical abuse. The judge also noted that defendant failed to provide any plausible alternative explanation as to the cause of Johnny's injuries. Further, the judge determined that the risk of harm to Johnny continued due to defendant's failure to admit any responsibility for Johnny's injuries, despite years of therapy. Accordingly, the judge found the Division had proven the second prong by clear and convincing evidence.

The second prong relates to parental unfitness. K.H.O., supra, 161 N.J. at 352. There are two ways to establish this prong: (1) the State must show that "the child's health and development have been and continue to be endangered" and "that the harm is likely to continue because the parent is unable or unwilling to overcome or remove the harm[;]" or (2) "the parent is unable to provide a safe and stable home for the child and that the delay in securing permanency continues or adds to the child's harm." Id. at 348-49.

As to the second prong, the judge found that although defendant complied with court orders and attended recommended services, she "remains both unwilling and unable to address what happened to her son and does not recognize that she did not provide him with a safe and stable home when he was in her care." The judge credited Dr. Smith's opinion that defendant's "capacity to keep her child safe in the future is unknowable." Further, the judge noted that all of Johnny's needs were being met by the grandparents, who indicated a desire to adopt him. Accordingly, the judge found the Division had proven the second prong by clear and convincing evidence.

The facts here are similar to those in F.H., supra, 389 N.J.Super. at 591, where the Division removed a child after doctors deemed injuries suffered by the child were non-accidental in nature. F.H., like defendant here, completed all services provided by the Division, but refused to take responsibility for the child's injuries. Id. at 596. We affirmed the trial court's determination that the Division proved the second prong of the best interests test. Id. at 617-18. We expressed our concern that "the parents' steadfast refusal to acknowledge any responsibility for [the child's] injuries" and their "insistence on attributing [the child's] injuries to a medical disorder, even in the face of incontestable evidence to the contrary[.]" Id. at 617.

The third prong requires the Division to make reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home. N.J.S.A. 30:4C-15.1(c). Reasonable efforts will vary with the circumstances. F.H., supra, 389 N.J.Super. at 620. This factor requires the Division to make diligent efforts to make it possible to reunite the family. K.H.O., supra, 161 N.J. at 354.

As to the third prong, the judge found the Division had provided defendant with numerous services in order to reunify her with Johnny, including: therapy, parenting classes, and visitation. The judge discredited Dr. Jewelewicz-Nelson's belief that KLG was the best option for Johnny, concluding that she "offered the concept of KLG as a way for [defendant] to save face, not because it was really in the child's best interest." Further, the judge noted that KLG was not an option because the grandparents want to adopt Johnny. Accordingly, the judge found the Division had proven the third prong by clear and convincing evidence.

We note that our Supreme Court has made clear that kinship legal guardianship should only be considered when adoption is not possible:

The plain language of the [Kinship] Act, as well as its legislative history, establish kinship legal guardianship as a more permanent option than foster care when adoption "is neither feasible nor likely" and "kinship legal guardianship is in the child's best interest." N.J.S.A. 3B:12A-6(d)(3)-(4); [N.J. Div. of Youth & Family Servs. v. S.V., 362 N.J.Super. 76, 88 (App. Div. 2003)]. Conversely, when the permanency provided by adoption is available, kinship legal guardianship cannot be used as a defense to termination of parental rights under N.J.S.A. 30:4C-15.1(a)(3).

[N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 512-13 (2004).]

Here, kinship legal guardianship was not an available option because the grandparents want to adopt Johnny. Thus, defendant's argument that the court improperly rejected KLG clearly lacks merit.

The fourth prong, requiring proof that termination of parental rights will not do more harm than good, "serves as a fail-safe against termination even where the remaining standards have been met." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 609 (2007). "The question ultimately is not whether a biological mother or father is a worthy parent, but whether a child's interest will best be served by completely terminating the child's relationship with that parent." E.P., supra, 196 N.J. at 108. If a child can be returned to the parent without endangering the child, the parent's right to reunification takes precedence over the permanency plan. A.W., supra, 103 N.J. at 608.

That the child has bonded with the foster parent does not alone justify the termination of parental rights. N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J.Super. 235, 263 (App. Div. 2005). "[A]n analysis that focuses entirely on the child's bonding with his or her foster parents, without a concomitant finding of parental fault, cannot stand." N.J. Div. of Youth & Family Servs. v. D.M., 414 N.J.Super. 56, 74 (App. Div. 2010). However, where "a parent has exposed a child to continuing harm through abuse or neglect and has been unable to remediate the danger to the child, and the child has bonded with the foster parents who have provided a nurturing and safe home, . . . termination of parental rights likely will not do more harm than good." E.P., supra, 196 N.J. at 108.

In establishing this prong, the State should adduce testimony from a "well qualified expert who has had full opportunity to make a comprehensive, objective, and informed evaluation of the child's relationship" with the biological and foster parents. J.C., supra, 129 N.J. at 19. "The question . . . is whether, after considering and balancing the two relationships, the child will suffer a greater harm from the termination of ties with [his or] her natural parents than from the permanent disruption of [his or] her relationship with [his or her] foster parents." K.H.O., supra, 161 N.J. at 355.

As to the fourth prong, the judge found that Johnny "is in need of permanency." The judge recognized Johnny had a bond with his mother, but credited Dr. Weitz's opinion that it is "an insecure bond[.]" Further, the judge found that every expert, even Dr. Jewelewicz-Nelson, did not recommend reunification at the time of trial. The judge noted defendant would still be welcome in the maternal grandfather's home. Thus, the judge found no reason why termination of parental rights would cause Johnny more harm than good, and "the grandparents would have the ability to mitigate any loss [Johnny] would suffer due to termination of parental rights." Accordingly, the judge found the Division had proven the fourth prong by clear and convincing evidence.

Defendant further argues that her trial counsel provided her with ineffective assistance by failing to adequately cross-examine Dr. Agrawal and by failing to retain an expert to rebut his testimony. We disagree.

Parents who are the subject of a termination action have the right to effective counsel. N.J. Div. of Youth & Family Services v. B.R., 192 N.J. 301, 306 (2007) ("[T]he right to counsel in a termination case has constitutional as well as statutory bases. Either way, the performance of that counsel must be effective."). A claim of ineffective assistance of counsel is to be evaluated in light of the two-part standard articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); B.R., supra, 192 N.J. at 309. Such a claim must be raised on the parent's direct appeal from an order of termination. Id. at 311.

Individuals facing termination of their parental rights who assert ineffective assistance of trial counsel must prove (1) counsel's performance was objectively deficient, and (2) but for counsel's unprofessional errors, there is a reasonable probability the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2065, 80 L.Ed. at 687. In reaching a determination, the courts must exercise "a strong presumption" that counsel has rendered appropriate and sufficient professional assistance. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Thus, a parent must point to "specific errors, " which rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed.2d 657, 668 n.26 (1984).

In her appeal of the abuse and neglect finding in her Title 9 case, defendant made essentially the same arguments regarding her attorney's failure to adequately cross-examine Dr. Agrawal and to retain an expert to rebut his testimony. We rejected defendant's arguments, noting

[N]o certification by any expert has been provided to show that it was feasible to present expert testimony that conflicted with Dr. Agrawal's. In fact, [defendant's] attorney admitted at the permanency hearing on May 12, 2011 that he was "unsuccessful in securing an expert who was able to contradict the Division's evidence at [the] fact-finding [hearing]."
[Y.A., supra, No. A-2047-11 (slip op. at 15).]

On this appeal, defendant cites hearsay to contend that Johnny's bruises could have been caused by "allergic purpura." Again, she provides no certification from any expert stating that this could have caused Johnny's injuries. Like her appeal in the Title 9 case, defendant offers no evidence to show that an expert could have been retained who would have testified that an allergic reaction caused Johnny's bruises. Defendant's contention that her trial counsel failed to adequately cross-examine Dr. Agrawal similarly lacks merit. Defendant claims that her counsel should have questioned Dr. Agrawal regarding the possibility that "allergic purpura" caused Johnny's bruises. Because there is no competent evidence showing the bruising was caused by an allergic reaction, trial counsel did not err in failing to question Dr. Agrawal in this regard. Moreover, Dr. Agrawal testified on direct examination that the bruises were inconsistent with a dermatological problem or allergic reaction. Defendant's ineffective assistance of counsel claim clearly fails to meet either prong of the Strickland test.

Affirmed.


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